PROPERTY I
ISSUE ANALYSIS
FALL 1984

QUESTION I

The 1967 will:

Oliver's will gave a Life Estate to his wife Ophelia since the property is to go the someone else "at her demise." The widow Claus has the future interest here which is a vested remainder subject to complete divestment. It is a remainder since it is in a grantee (The Widow Claus), follows the natural termination of Ophelia's life estate, is support by Ophelia's Life Estate and does not cut it short and can take possession immediately on termination of opheila's estate (no condition precedent.) It is vested since it is in an ascertained, person (The Widow Claus), and there is no condition precedent to her taking. However, she (or her heirs) will lose the property if "A Christmas Carol" is not shown on American TV. Thus the property is subject to complete divestment. Since this remainder can potentially last forever, but can be cut snort automatically by a specific event it is a Fee Simple Subject to an Executory Limitation. (Or the interest in Jacques Frost)

The next interest in the will is an executory interest in Jacques Frost. It is in a grantee (J.F.), however, it will cut short The Widow Claus' fee if the divesting event occurs, and therefore cannot be a remainder. Since there are no duration limitations on J.F.'s interest once he receives it, it is a Fee Simple Absolute.

The only technical rule to-apply here is the Rule Against Perpetuities which states that an interest must vest, if at all, within a life in being at the creation of the interest plus 21 years or it is void. The Rule applies to all contingent remainders, executory interests and vested remainders subject to open. By this rule, the executory interest to J.F. is void since it is impossible to tell at the end of any life in being in 1967 plus 21 years whether or not "A Christmas Carol" will ever not be shown on American television. The rule does not apply at all to the vested remainder in The Widow Claus.

Since the executory interest is void and will be struck from the will, the grantor has a Possibility of Reverter because the word "until" is generally construed to create a Fee Simple determinable in The Widow Claus. If the Dickens story is not shown on TV title will automatically pass to grantor or his heirs. (Note, if the student called the estate owned by The Widow Claus a Fee Simple on Condition Subsequent, then the future interest retained by the grantor would be a Power of Termination (right of re-entry). The estate of this interest is a Fee Simple Absolute.

The ownership of Frostbite Acres:

Since at the time of the 1967 will Ophelia, the owner of the life estate is dead, the remainder to The Widow Claus goes into possession. In 1972, when The Widow Claus and the kids go to the Indian Ocean and J.F. move-, onto the property the question of adverse possession arises. For adverse J.F.'s use of the property must be open, notorious, continuous, hostile and adverse for 10 years.


QUESTION II

The lease between Lorraine and Terence was a term of years for 5 years since there was a definate starting and ending date. There is no issue of Statute of Frauds since the facts state that the lease was written.

Constructive Eviction

Lorraine's nocturnal Tuba playing raises the issue of Constructive eviction. Since the facts state that Terence's sleep was interrupted, Lorraine has substantially and unreasonably interfered with her tenant's use and enjoyment of the property and so Terence's rental obligation would be extinguished. However, in order to claim constructive eviction Terence would have had to give notice (satisfied here) and vacate. The facts show that Terence continued to live in the apartment without paying rent. Although he eventually moved out in 1982, this was after the music had stopped and so cannot be attributable to the constructive eviction. Therefore, he is liable to Lorraine (and thus to Lulu) for the 5 months rent: $1,000.

(note: It is not really necessary to discuss the Implied Warrant of Habitability. This term is implied in every residential lease and states that the tenant has the right to expect that the rented premises be in a livable condition. The standard for such term is generally the housing code of a particular jurisdiction. Here the noise probably does not put the premises in an inhabitable condition--although I suppose the question is debatable. If the student finds a breach, then Terence has no rental obligation during that time and can remain in possession.)

Terence's Abandonment

When Terence left the premises in January 1982, Lulu had the election to accept surrender of the lease and terminate the landlord-tenant relationship. Alternatively, she could have opted to keep the lease in force and sue Terence for damages. This latter option is what Lulu did here. The traditional rule is that the landlord has no duty to mitigate her damages by reletting the premises to another tenant. However, the modern trend is to place that responsibility on the landlord. It is apparent that Lulu's lease with Amadeus was in mitigation of her damages and not on her own account (accepting surrender) since she notified Terence of her subsequent rental. The proper measure of damages = (Terence's rent forthe balance of his term) minus (any rent received by Lulu in mitigation, if necessary). Here: $7,200 - ($2,400 from Amadeus + $2,400 from Bea Toven)= $2,400. We need not worry about the issue of anticipatory repudiation since Lulu is suing after the bal ance of the term.

Amadeus' assignment to Bea Toven and her abandonment

The facts state that in June 1983 Amadeus assigned his rights in the lease to Bea Toven. A lease contains two sets of obligations: those stemming from the possession of an estate in land, (called Privity of Estate) and those flowing from the contractual provisions of the lease (called Privity of Contract). Rent is an obligation which can be found under both theories. An assignment transfers Possession of the premises (and thus privity of estate) to the new tenant. However,and assignment does not end the privity of contract with the assignor unless the land lord agrees to release him (no facts to support that argument here). Therefore, Amadeus' assignment makes Bea Toven liable for privity of estate for the year's worth of rent she was in possession, but does not release Amadeus from his independent'! ,rental obligation by privity of contract. Thus Lulu can sue Amadeus for June to December 1984 rent even after the assignment ($1,200). However, she can recover rent for this period from either Amadeus or Terence---- but not both.

Fixtures

A fixture is personal property of the tenant which loses its character so as to become part of the realty and thus property of the landlord. A fixture becomes part of the realty by the following factors: nature of the property, method of annexation, ability to remove it without permanent damage to the realty, temant's intent, etc. The built-in wall unit/entertainment center should belconsidered to be a fixture because of its character, built:-in attachment, the fact that a hole was left on its removal, etc. Since the unit is a fixture, it ceases to be property of Bea when installed and therefore she had no right to remove it when she left. She has converted Lulu's property and has caused waste by the hole in the wall due to its removal. There is no argument here as to trade fixtures since the facts state that the unit was for her personal use.